Friday, June 19, 2015

Thought for (pet) food: false advertising claims continue

Blue Buffalo sued Purina for false advertising ten of its
pet food products under the Lanham Act, the Connecticut Unfair Trade Practices
Act (CUTPA), the Connecticut Unfair Sales Practices Act (CUSPA), and
Connecticut common law. Here, the court
granted in part and denied in part Purina’s motion to dismiss.Mostly, Blue Buffalo alleged that Purina
touted ingredients that were only a tiny fraction of the overall product.

Whether an advertisement is deceptive “is generally a
question of fact which requires consideration and weighing of evidence from
both sides and therefore usually cannot be resolved through a motion to
dismiss.” But false advertising claims
can still be dismissed where the challenged statements would not plausibly
deceive a reasonable consumer.

Purina first argued that, “as a matter of law, no reasonable
consumer could be confused by its advertising and product packaging because its
products all contain accurate ingredient statements.”But the mere presence of an ingredient
statement, while relevant, doesn’t eliminate the possibility of misleadingness.
A factual inquiry was necessary.

Next, Purina argued that its labels couldn’t plausibly be
false or misleading because it complied with FDA regulations and the pet food
labeling regulations of the Association of American Feed Control Officials,
which Connecticut has codified into state law.Pom Wonderful is to the
contrary, though compliance with regulations might be relevant to Purina’s
defense.

Purina then argued that the challenged ads were
puffery.Since the challenges at issue
mainly went to images, the standard was whether the image was “an exaggerated,
blustering, and boasting statement upon which no reasonable buyer would be
justified in relying.” Under Second Circuit precedent, even when images can be
proven either true or false, “if a visual representation is so grossly
exaggerated that no reasonable buyer would take it at face value, there is no
danger of consumer deception and hence, no basis for a false advertising
claim.” Puffery is also usually a
factual issue inappropriate for resolution on a motion to dismiss.

Beggin’ Strips: Blue Buffalo alleged that ads and packaging
for Purina’s Beggin’ Strips dog treats mislead consumers into thinking “that
the product is bacon” or that its main ingredient is bacon, when in fact bacon
is listed tenth on the ingredient list. Shots from the TV commercial:

Beggin' Strips ad

The TV ad shows a thought bubble with a picture of bacon
appearing over a dog’s head when a human opens bag of the treats. The dog jumps
to its feet as a voiceover (the dog’s inner voice) says “Bacon!”

The dog runs around the house
looking for the bacon, while the dog’s “voiceover” repeats the word “bacon”
over and over again. As the dog checks a pan on the stove to find it empty and
turns to find the owner with the bag of Beggin’ Strips, the voiceover says:
“yummy, crunchy bacon, bacon, bacon! There in that bag.” The word bacon is
repeated 10 times. It is referenced throughout the commercial, including when a
child’s blocks spin around to spell “BACON” as the dog rushes by.

(I almost never watch ads, but even I remember this
campaign, though not this ad in particular.Repetition works, even when we don’t want it to.)Blue Buffalo also alleged that the fact that
the treats were made to look like strips of bacon were misleading, and that the
package contributed to the misleadingness mostly by using the text “made with
real bacon.”

Beggin' Strips package, "made with real bacon"

Purina disagreed, noting that its ads used qualifiers such
as “made with real bacon” and “bacon flavored,” as confirmed by the ingredients.It argued that the ads were mere puffery and
that no reasonable consumer would take them at face value.The court found that Blue Buffalo stated a
plausible claim for false advertising; because these were misleadingness
claims, extrinsic evidence was needed to figure out whether a reasonable
consumer would be misled. Though the storyline of the ad was hyperbolic, “hyperbole
does not prevent an advertisement from being misleading.”

Similarly, Blue Buffalo alleged that Purina falsely
advertised that the Beneful line of dog foods consists primarily of “Real Beef”
and “Real Chicken,” when in reality beef and chicken only make up a tiny
fraction of the product. TV ads for Beneful dog food “typically feature a
cascade of apparently human-grade meats, vegetables and grains falling through
the air,” allegedly conveying the false message that the dog food was comprised
primarily of high-quality, wholesome ingredients. Likewise, the packaging contained pictures of
high-quality meats and produce and describes the Beneful line as containing
“real” ingredients.

Screen shot from Beneful ad with chunk of meat

Beneful packaging "with real beef"

Purina argued that it wasn’t plausible that the “small
photos of meat, alongside larger photos of corn, wheat and other ingredients
(all of which are in the product),” would deceive a reasonable consumer into
thinking that dry dog kibble was “primarily real beef.” Purina further argued
that its ads were mere puffery because it wasn’t realistic or reasonable for a
consumer to believe that dog food kibbles would feature pieces of fresh, human
grade food as main ingredients.Again,
Blue Buffalo plausibly alleged that repeated depictions of whole pieces of beef
and avocado would mislead a reasonable consumer into thinking that the Beneful
dog food contains greater amounts of those ingredients.

Cat Chow: Blue Buffalo said the packaging and ads
misleadingly conveyed the message that salmon was one of the main ingredients,
when it’s only eighth on the ingredient list. The packaging features a picture
of a cutting board with a large cut of salmon filet, and one TV ad allegedly compared
the owner’s diet and the cat’s diet:

In the commercial, the cat’s owner
says that both she and the cat have started eating healthier. A voiceover then
states, “in time you realize: the better you eat, the better you feel,” and
“these days we both eat smarter.” The advertisement shows the cat’s owner
taking a large filet of salmon out of the refrigerator just before feeding her
cat with Cat Chow Naturals, while a voiceover states that Cat Chow Naturals is
“made with real chicken and salmon.”

Cat Chow ad screenshot

Cat Naturals packaging

Although the statements “in time you realize: the better you
eat, the better you feel,” and “these days we both eat smarter” were mere
puffery because they were simply subjective opinions that couldn’t be
falsified.But taken together with the
challenged images, it was plausible that a reasonable consumer would think that
salmon was a primary ingredient of the cat food; proof or disproof of that was
for further evidentiary development.

Fancy Feast Filet Mignon Flavor with Real Seafood and Shrimp:
fish and shrimp are the eighth and ninth ingredients, but they’re minor
ingredients, and there’s no beef at all.Blue Buffalo also argued that advertising the brand as “gourmet” on
Purina’s website, and including a gold seal with the words “100% Complete &
Balanced Nutrition” on the packaging, was false and misleading because this cat
food was made with inferior ingredients. The court determined that Blue Buffalo didn’t
plausibly allege that a reasonable consumer would believe that the product
contained the expensive ingredient filet mignon just because of the label
“filet mignon flavor.”Also, “gourmet”
and “100% Complete & Balanced Nutrition” were mere puffery.100% might be quantifiable in other
circumstances, but whether nutrition is complete and balanced is a matter of
opinion.However, Blue Buffalo did
plausibly plead that a reasonable consumer could think that the product
contained at least some beef, or that seafood and salmon were primary
ingredients.

Fancy Feast "filet mignon flavor with real seafood and shrimp"

ONE SMARTBLEND dog food and Pro Plan dog and cat food:
Purina advertised these as containing rice and “Rice” is in the name of some
varieties, which allegedly conveyed the false message that those products were
made with a healthy and nutritious grain, when in fact those products were made
with brewers rice, a filler with little or no nutritional value. Blue Buffalo alleged that brewer’s rice was “part
of the fractionated debris left over from whole rice that has been milled, and
the saleable rice has been separated…. Brewers rice does not contain many of
the nutritional benefits of whole grain rice or even the lower nutritional
benefits of white rice sold for human consumption. Brewers rice therefore is
used primarily as cheap filler in animal feeds.”This made Blue Buffalo’s claims plausible.

Chef Michael’s dog food: Blue Buffalo alleged that the ads
and packaging falsely indicated that the dog food was made with quality pieces
of chicken and beef when it wasn’t. Instead of the “Tender Pieces” being whole
pieces of chicken, as allegedly conveyed, they included soy products and other
ingredients. Additionally, the website “It’s not just dog food. It’s Chef
Michael’s” allegedly falsely suggested that the product consisted of
high-quality, human grade beef and chicken as one would expect to be prepared
by a “Chef” rather than soy and other cheaper ingredients. The chef-related
allegation was conclusory, with no factual support, but the idea that images of
the “Tender Pieces” would mislead a reasonable consumer into thinking those
pieces were whole pieces of chicken was not implausible.

Chef Michael's package and graphic on package

Just Right dog food: Blue Buffalo alleged that Purina falsely
claimed that it would create and deliver a “unique blend” of ingredients to
each consumer. On theJustRightPetFood.com website, Purina offered “Food as
unique as your dog,” “Personalized nutrition for your dog,” “Unique Blends,”
“Tailored Nutrition” and “a personalized blend to match your dog’s nutritional
needs.” To buy the product, dog owners must fill out a “pet profile,” including
the dog’s breed, age, weight, level of activity, coat quality, and stool
consistency. Answering these questions produces “Your Blend,” which Blue
Buffalo alleged contributed to the false message that the ingredient blend is
personalized and unique to that specific owner’s dog. In fact, Blue Buffalo
alleged, Just Right dog food was made from only a limited set of basic
ingredient formulas, each of which is substantially similar to the others, with
variation only on the “protein preference” (lamb, chicken or salmon) and
whether to exclude soy or grains from the formula. In addition, Just Right ads
said “we believe the best nutrition is personalized,” which allegedly falsely
claimed superiority.

Just Right website screen shot

Purina replied that no reasonable consumer would expect a
completely unique formula, so “unique” was puffery, and so was “we believe the
best nutrition is personalized.”The
“best”/“best nutrition was personalized” claims were indeed puffery. But claims
about uniqueness and personalization couldn’t be deemed puffery as a matter of
law—claiming greater levels of personalization than actually provided could be
misleading.(See also United States v.
Strauss, 999 F.2d 720 (2d Cir. 1993) (finding falsity under Food, Drug, and
Cosmetic Act, where defendant repackaged a few types of dog kibble as twelve
“specially formulated” varieties, each targeted to a particular dog type; using
“ignorant, unthinking and credulous” standard); Porter & Dietsch v. Federal
Trade Comm’n, 605 F.2d 294, 303 (7th Cir. 1979) (upholding finding that
“special” and “unique” formula claims were false and deceptive where ingredient
was same as in many other products for same condition); Alpo Petfoods, Inc. v.
Ralston Purina Co., 720 F. Supp. 194, 200 (D.D.C. 1989) (“specifically
formulated” and “specially formulated” claims literally false where product did
not have stated “special” benefit and competing product had same formula),
aff’d in relevant part, 913 F.2d 958 (D.C. Cir. 1990).)

Blue Buffalo also alleged that Purina intentionally misled
consumers by representing that its Wazzin’ Train and Canyon Creek Ranch chicken
and duck jerky treats were wholesome and suitable for consumption by dogs when
Purina knew that they caused sickness and death. Purina promoted these treats
as being “natural,” “wholesome,” “healthy” and made from “only the most simple
and pure ingredients.” In fact, Blue Buffalo alleged, the treats: “(i) had
proven poisonous to dogs, and were implicated in the illness and/or deaths of
hundreds of pets, (ii) were manufactured and processed in Chinese facilities
that were not subject to the same oversight as their counterparts in the United
States, and (iii) had been exposed to, or included, harmful ingredients,
including illegal antibiotics, diseased bird parts, and/or other toxic
ingredients.” Purina allegedly disregarded thousands of consumer complaints and
multiple warnings from the FDA, and instead continued to issue public
statements falsely claiming that the treats were manufactured under “the
highest quality and safety standards” and weren’t responsible for any illness …
up until it withdrew the jerky treats from the market in early 2013.Purina said these were merely conclusory
allegations. While these allegations weren’t supported with extrinsic evidence,
they weren’t merely conclusory, and so they were properly alleged.

Thus, claims against each of the challenged products stayed
in, but some of Blue Buffalo’s claims were dismissed; the complaint would have
to be amended to fit the court’s ruling.

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